Union Permitted To Seek Boycott of Fashion Valley Store

In the December 24, 2007 California Supreme Court decision Fashion Valley Mall, LLC v. National Labor Relations Board, members of the Graphic Communication Workers Union, who were also employees of the Union Tribune newspaper, distributed leaflets to customers entering and leaving the Robinson-May store in San Diego’s Fashion Valley Mall. The leaflets declared that Robinsons-May is a company that advertised in the Union-Tribune newspaper and that the newspaper allegedly treated its employees unfairly. The leaflets encouraged customers who believed “that employers should treat employees fairly” to call the CEO of the Union-Tribune newspaper and relay this sentiment.

Mall officials were alerted to the union’s actions and told the union members that they were trespassing and that they had not obtained a permit from the property owners “to engage in expressive activity.” The shopping center did permit certain “expressive activities”on property, but only if the center’s application process was strictly followed. An applicant had to agree to not boycott any mall tenant.

The union filed a charge with the National Labor Relations Board (NLRB) and an Administrative Law Judge (ALJ) ruled the Fashion Valley Mall violated § 8(a)(1) of the NLRA by not allowing Union Tribune employees to distribute the leaflets. The Board affirmed the ALJ’s opinion as modified, holding that the purpose of the Mall’s anti-boycott policy was to protect the mall tenants from “lawful” consumer boycott hand-billing activities.

The mall petitioned this ruling to the District of Columbia U.S. Circuit Court of Appeals. The Court of Appeals, first decided that the shopping center violated § 8(a)(1) by requiring individuals to obtain a permit prior to engaging in expressive activity and then, requested that the California Supreme Court resolve the legal issue to whether the shopping center acted within its rights under California state law.

The Supreme Court of California, relying on its 1979 decision in Robins v. Pruneyard Shopping Center, recognized that the California Constitution grants broader freedom of expression rights than does the First Amendment of the United States Constitution. The state high court held that the right to free speech granted in the California Constitution gives a union the right to encourage customers and visitors at a shopping center to boycott one of the center’s stores, and therefore Fashion Valley Mall violated the state constitution by attempting to prohibit the union’s exercise of its protected rights.

For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at (619) 525-7000 or daly@dalylawfirm.co.